MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 September 2001
	DOCKET NUMBER:   AR2000042978

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his discharge be voided and that he be placed on the Temporary Disability Retired List (TDRL) with a 40% physical disability rating.

APPLICANT STATES:  In effect, that he was unjustly, administratively discharged for a disability that should have resulted in his being placed on the TDRL with at least a 40% disability rating.  In support of his application he submits copies of medical documents that include his Physical and Medical Evaluation Board results and a taped transcript of the formal Physical Evaluation Board (PEB).

COUNSEL CONTENDS:  That the PEB and the Army Disability Agency failed to apply the appropriate standards set forth in Army Regulation 635-40 and the Veterans Administration Schedule for Rating Disabilities (VASRD) when it evaluated the applicant’s fitness for duty and degree of impairment.  As such their actions were arbitrary and capricious and unsubstantiated by evidence.  He continues by stating that the applicant should be temporarily retired with a compensable rating of 40% under the VASRD Diagnostic Code 5293 for his intervertebral disc syndrome, manifested by chronic low back pain with radicular symptoms, secondary to his herniated nucleus pulposis at L4-5 and L5-S1.  He explains his position in an 18-page brief he has provided with the application.

EVIDENCE OF RECORD:  The applicant's military records show:

On 22 January 1997, he underwent an entrance physical examination and revealed that he was treated for whiplash on 21 February 1996 for back pain caused by whiplash from an automobile accident.  He also indicated his childhood diseases and the fact that he had spinal meningitis at the age of 2.

He enlisted in San Diego, California on 13 May 1997 for a period of 3 years and training as an infantryman.  He completed his training as a Bradley Fighting Vehicle Infantryman and was assigned to Fort Benning, Georgia.

In April 1998, the applicant injured his back while undergoing physical training.  He was treated by medical personnel and was diagnosed as having herniation of L4-5 and L5-S1 disks.  He was determined not to meet the physical standards for retention and was referred to a MEB. 

On 8 December 1998, a Medical Evaluation Board (MEB) convened at Fort Benning and evaluated the applicant’s medical records.  The MEB determined that his case should be referred to a PEB.  The applicant indicated that he did not desire to remain on active duty and that he agreed with the findings of the board.

On 15 December 1998 a PEB convened at Fort Sam Houston, Texas and determined that based on a review of the medical evidence of record, that the applicant’s medical and physical impairment prevents reasonable performance of duties required by his grade and military specialty.  The Board found that he was physically unfit and recommended a combined disability rating of 10%.  The applicant did not agree with the findings of that board and was granted a formal hearing.

On 14 January 1999 he appeared before a formal PEB represented by counsel.  After reviewing the evidence submitted, as well as the evidence of record and testimony from the applicant and his mother, the PEB determined that the applicant was physically unfit and recommended that he receive a combined disability rating of 20% and be discharged with severance pay.  The applicant again did not agree with the findings of the board and submitted an appeal to the PEB on 25 January 1999.

The PEB reviewed his rebuttal and determined that there was no basis or sufficient evidence submitted to change the findings of the formal PEB.  The applicant’s case was forwarded to the Army Physical Disability Agency for final processing.

Accordingly, the applicant was discharged in the pay grade of E-3 on 16 March 1999, under the provisions of Army Regulation 635-40 for disability (20%) with severance pay in the amount of $4,471.20.  He had served 1 year, 10 months and 3 days of total active service. 
  
On 11 April 2000, the Department of Veterans Affairs (VA) notified the applicant that it had been determined that his disability had increased in severity and that his 20% disability had been increased to 40%.

There is a difference between the VA and Army disability systems.  While both the VA and the Army use the VASRD to determine disability ratings, not all of the general policies set forth in the VASRD apply to the Army; thus there are sometimes differences in ratings.  The Army’s determination of a soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his grade, rank, or rating.  If the soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a soldier unfit by reason of service connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-2b, provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant has not provided sufficient documentation to support his contention that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.  

3.  The fact that the VA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department. 

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvo ___  ___teo __  ___ena__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042978	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/27	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  179	108.0200/DISAB %	
2.		
3.		
4.		
5.		
6.